Thursday, 14 July 2011

Don't forget about the children.....

When a relationship breaks down tensions often run high and there are many issues that need to be resolved. These can include the finances, the family home, Child Tax Credits and so on. However, one of the most important considerations is how to resolve matters relating to children.

In this article I aim to highlight the role of the Court and other advisory bodies. I also hope to highlight the pitfalls and concerns that I have on occasions when I am approached by mothers or fathers to help them resolve a dispute about the children. I hope that this article helps to put into perspective the issues that both parties need to consider at the outset and if not after they receive advice from a Resolution Accredited Specialist who is recognised as a specialist provider of advice in family law disputes. 

The first most important factor to note is that it is widely recognised and accepted by the Court that children benefit from having a positive relationship with both parents, whether these parents continue to live together or not. The rights of any parent are not limited for the duration of the relationship. There are cases where there are significant concerns relating to abuse, drug dependency and violence in which case it may be thought beneficial to limit the contact or restrict it completely until the underlying issues have been resolved.

In the majority of cases however, the issues that cloud the settlement of Contact and Residence disputes actually relate to the adults and not the children. When this cloud is lifted and it is recognised and accepted by both parents that the other is a ‘good parent' significant progress can be made to settle the case.

In many cases that I see, one party (usually the resident parent - i.e. the parent with whom the child lives) places pressure on the other none resident parent (with whom the child does not live), as a means of holding on and staying in control of the situation they find their family in. This is often the case where one party may have ended the relationship to the complete astonishment of the other and an element of distrust has planted its seed.

If each is a good parent then contact should be allowed to flourish within reason. Children benefit from this and manage to develop positive relationships with both parents. Children suffer immensely when they feel as if their loyalties have to be divided and the children say one thing to one parent and another to the other parent to try not to upset them. These are not issues that the children should have to consider. 

The children should be able to move freely between one parent to the other without any hidden agendas and animosity. Many think that the children do not see the tension or do not know that it exists. In my experience the children are more alert and aware of this tension and need help and understanding to adapt to their new situation with their parents living in separate homes. 

From a legal perspective, from the 6th April 2011 it became compulsory to attend a Mediation Information and Assessment Meeting before any matter relating to divorce, financial matters or children disputes can be pursued through the courts. The reason for mediation being introduced is that it was felt that people were too quick to bring the minor disputes to the Court to resolve. These included things like where the children would be collected and returned from and to, to whom, frequency and timing.

Requests for increased contact by fathers were often disputed by mothers and in some cases without good reason. The function that the Mediation Information and Assessment Meeting is designed to serve is to reduce conflict between the parents and encourage both parents to resolve the issues that exist before Court action is started. As to whether this will benefit the parent's remains largely dependent upon whether both embrace the concept of trying to reach an agreement. If one fails to attend, then mediation will inevitably fail.

Solicitors can also play a part in resolving such disputes by ensuring that the relevant issues are indentified, discussed openly and where possible laid to rest thus allowing the contact arrangements to take effect. As a Resolution Accredited Specialist, I am often surprised to see some of the letters that arrive at my office littered with allegations and the usual ‘he says, she says' scenarios. Is it really that important? Other than increase the animosity between the two parents what does this do? Tit for tat correspondence is exchanged and the war between the parties consumes the solicitor's correspondences and the issue of contact is lost.

If Mediation fails and solicitors are unable to resolve this matter then it is inevitable that Court proceedings will commence to define with whom the child shall live (Residence) and with whom there shall be Contact and in what terms. It is at this point that CAFCASS (Children and Family Court Advisory and Support Service) become involved with the parents and will make recommendation on how this matter can be resolved.

Whether in the Court arena or otherwise, I aim to resolve matters in a constructive way and help to move matters forward. Often by the time I am instructed the relationship has ended and the reasons for this may be many. I have helped numerous clients resolve the issues relating to Contact and Residence by ensuring that they look at what they wish to achieve and if the issues between the adults cloud their view, I am always certain to remind my client not to forget about the children. Often when the adult issues are eliminated many parents are extremely positive about the others ability to care for the child. 

If you are a parent who is suffering the trauma of a relationship that has ended and your attempts at negotiating contact have failed then please contact Talvinder Penaser at Leeds Family Law on 0113 3944145 to book your Free consultation. You will speak to our Resolution Accredited Specialist Solicitor who has expertise in Children related disputes and is a recognised provider of expert advice in this area.